McMahon v. Baroness Erlanger Hospital

• Decision Date: 26 March 1957
• Citation: 306 S.W.2d 41,43 Tenn.App. 128
• Parties: Mrs. Betty McMAHON, Plaintiff in Error, v. BARONESS ERLANGER HOSPITAL et al., Defendants in Error. James Albert McMAHON, Plaintiff in Error, v. BARONESS ERLANGER HOSPITAL et al., Defendants in Error. Mr. and Mrs. James A. McMAHON, Plaintiffs in Error, v. BARONESS ERLANGER HOSPITAL et al., Defendants in Error. 43 Tenn.App. 128, 306 S.W.2d 41
• Court: Tennessee Court of Appeals

Page 41

306 S.W.2d 41

Mrs. Betty McMAHON, Plaintiff in Error, v. BARONESS ERLANGER HOSPITAL et al., Defendants in Error.

James Albert McMAHON, Plaintiff in Error, v. BARONESS ERLANGER HOSPITAL et al., Defendants in Error.

Mr. and Mrs. James A. McMAHON, Plaintiffs in Error, v. BARONESS ERLANGER HOSPITAL et al., Defendants in Error.

43 Tenn.App. 128, 306 S.W.2d 41

Court of Appeals of Tennessee, Eastern Section.

March 26, 1957 Certiorari Denied by Supreme Court Aug. 19, 1957.

[43 TENNAPP 129] Campbell & Campbell, Chattanooga, for plaintiff in error.

Spears, Moore, Rebman & Williams, Chattanooga, for defendant in error.

HALE, Judge.

These three suits were based upon the malpractice or negligence of a nurse selected by and in the employ of Baroness Erlanger Hospital, which is owned and operated by Hamilton County and the City of Chattanooga by and through a Board of Trustees.

At the conclusion of plaintiffs' evidence the learned trial judge sustained defendants' motion for peremptory instructions on the ground of governmental immunity.

[43 TENNAPP 130] Plaintiffs have duly prosecuted this appeal and have assigned numerous errors, which we think can be condensed into the two propositions hereinafter stated.

On February 19, 1953, Mrs. Betty McMahon entered this hospital as a pay patient in an obstetrical case. A junior student nurse at the instruction of the registered nurse on the obstetrical floor gave Mrs. McMahon an injection of a drug called ergotrate. The instructions were to give this after delivery. Mrs. McMahon had been in the delivery room, but as her time was not come she was returned to her room. Both the registered nurse and student nurse assumed she had been delivered, and without observing her condition, which should have been apparent, administered this drug. This caused the uterus to contract and thus brought on pain and suffering and caused the infant to die of anoxemia. She sued for personal injuries, her husband sued for loss of services and medical expenses, and jointly they sued for the death of their child.

In sustaining the motion for peremptory instructions, Judge Hunter said:

'The first issue presented is based upon the defendant's plea of governmental function. That plea is founded on the immunity of the state government from suit, which immunity extends to branches of the state government such as counties and municipalities chartered by the state.

'The law has been well settled in Tennessee for more than 100 years holding such arms of our state government immune so long as the functions of these branches were governmental in nature, such [43 TENNAPP 131] as the operation of the fire department, police department, garbage vehicles, the operation of schools and so forth.

'This immunity does not exist where a municipality engages in commercial enterprise for the purpose of making a profit such as the operation of our Electric Power Board, nor does it exist where the branch is maintaining a nuisance.

'However, the proof in this case shows beyond doubt that Erlanger Hospital, with all of its buildings, equipment and supplies, is jointly owned by the City of Chattanooga and Hamilton County, Tennessee, and that its trustees all serve by appointment without pay or remuneration of any kind.

'The proof further shows that the hospital is operated by an appropriation of tax money from both the City of Chattanooga and Hamilton County, and other sources of revenue, including approximately eighty-six and one-half per cent of all revenue from paying patients. Other revenue is obtained from miscellaneous gifts, blood bank sales to patients, and other additional appropriations from the city and county to cover operating deficits incurred annually.

'There are several other miscellaneous sources which will be explained later.

'Even though the proof indicates that the greater portion of Erlanger's income is derived by pay patients, it is also shown that several thousand charity patients are treated and hospitalized annually, and a further number are charged a reduced [43 TENNAPP 132] amount based upon their ability to pay. The rule has been previously stated with reference to governmental function, but to go further, the law in Tennessee for many years has held this:

'The duty of a municipal corporation, and this would include a county government, to conserve public health, is governmental, and is not liable to the courts for its employees while performing such duties, on the theory that the duty in regard to preventing sickness or caring for sick people is strictly a governmental function. Accordingly a municipal corporation or county government is not liable for the negligence of its officers or employees in conducting a hospital or in the treatment of patients therein, whether the purpose of the hospital be charitable or to provide for the general health and welfare by preventing and suppressing the spread of disease and so forth, but this is the law in Tennessee which this Court is bound by and so holds.

'Counsel for the plaintiffs seeks to distinguish between this well established rule of law and the case at bar on the theory that the plaintiff, Mrs. McMahon, was a paying patient, and further that approximately eighty-six and one-half per cent of all revenue derived by the hospital were from this source, and, therefore, the hospital is not charitable, but is a commercial enterprise existing for profit. However, the Tennessee Courts hold, as this Court holds now, that the mere fact that the city and county may receive some pay or remuneration, even a larger part in this case, in the operation or maintenance of their hospitals, does not take the case out of the general rule.

[43 TENNAPP 133] 'This rule is well established in Tennessee and all other states, as far as ascertainable by this Court.

'The plaintiff seeks to make another distinction on the theory that the hospital operates a tea room or restaurant on the premises and also dispenses soft drinks from automatic dispensers. To hold that the operation by the hospital of a tea room within the confines of the hospital for the comfort and convenience of visiting friends or relatives of patients, expectant mothers, doctors, nurses and other administrative employees, does not come within the rule granting immunity to governmental function would subject the hospital to numerous suits and constant executions against daily or weekly or monthly income from the operation of such facilities. This would necessarily force the closing of hospital run restaurants, magazine stands, soft drink dispensers and all incidental and miscellaneous services which are maintained or operated for the convenience and necessity of the persons named, thereby forcing all such persons to leave the premises for food and reading material at all hours of the day and night and in all conditions of weather; or in the alternative to furnish by the city and county all such facilities free to all comers.

'This indeed would be a burden unbearable by a hospital or public institution. It is the opinion of the Court that the operation of...